IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR M.F.A. NO. 6447 OF 2017 (CPC) BETWEEN Sri. Ramakrishnappa, S/o Late Doddamarappa, Aged about 58 years, R/at Mandibele Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore Rural District – 562 135.
... Appellant (By Sri. Hareesh Bhandary T., Advocate.) AND 1. Sri. J.T. Satish Chandra, S/o Late Thimmappa, Aged about 54 years, R/at No.88, “Amma”, 1st Main, Mahalakshmipuram, West of Chord Road, Bangalore – 560 086.
2. Sri. M.Devaraj, S/o Late Munivenkatappa, Aged about 58 years, 3. Sri. Manjunath B., S/o Byanna, Aged about 46 years, 4. Sri. Munivenkatappa, S/o Late Doddamarappa, Aged about 65 years, 5. Sri. Venkateshappa, S/o Late Doddamarappa, Aged about 60 years, 6. Sri. Nagarajappa, S/o Late Doddamarappa, Aged about 56 years, Respondents No.2 to 6 are R/at Mandibele Village, Vijayapura Hobli, Devanahalli Taluk, Bangalore Rural District – 562 135.
... Respondents (By Sri. Jaiprakash, Advocate for R1.
Sri. Vigneshwara V., Advocate for R2 and R3. R4, R5 and R6 –served.) This MFA is filed under Order XLIII Rule 1(r) r/w Section 104 of the CPC, against the Order dated 21.06.2017 passed on I.A. No. I and VI in O.S.No. 235/2017 on the file of the Senior Civil Judge and JMFC, at Devanahalli, partly allowing the I.A.NO. 1 filed under Order 39 Rule 1 and 2 R/w Section 151 of CPC and partly allowing the I.A. No. VI filed under Order 39 Rule 4 R/w Section 151 of CPC.
This MFA coming on for admission, this day, the Court delivered the following:
JUDGMENT This matter though listed for admission, at the consent of the learned counsel for both the parties, is taken up for final disposal .
2. Heard the learned counsel for the appellant and the learned counsel for the respondents.
3. The factual matrix is as under:
The appellant / plaintiff filed a suit against the respondents / defendants in respect of the suit schedule properties depicted therein. All the family members including the plaintiff decided to divide the sale consideration amount among themselves. The suit schedule property bearing Sy.No.141 measuring 4 acres of Mandibele village, Vijayapura Hobli, Devenahalli Taluk, Bangalore Rural District, was purchased in the name of the elder brother, being the kartha, under a sale deed dated 12.12.1988 and they were said to be in joint possession. All the family members including the plaintiff decided to dispose of the property and divide the sale consideration amount among themselves. Accordingly, Respondents 2 & 3 / Defendants 2 & 3 who were Real Estate agents, had brought one C.D. Sanjay Raju as a purchaser and a registered Agreement of Sale was entered into between the parties on 05.06.2012 for a sale consideration amount of Rs.2,27,60,000/-. The purchaser C.D. Sanjay Raju had paid an advance amount of Rs.40,00,000/-, with an understanding to find a better purchaser. But however, they got another purchaser one Suresh who entered into an unregistered agreement dated 30.04.2015 for a sale consideration of Rs.2,60,00,000/-, who had in all paid Rs.1 crore as advance amount. But, when the plaintiff and defendants got a better purchaser i.e., Respondent No.1 / Defendant No.1 to purchase the property for an amount of Rs.3,60,00,000/-, the sale deed came to be executed as on 29.07.2016. Thereby, the agreement of sale entered into with the previous purchasers came to be cancelled. They also returned the amount of Rs.40 lakh paid by C.D. Sanjay Raju and the amount of Rs.1 crore paid by Suresh, from out of the sale consideration of Rs.3,60,00,000/-. Thus, in all an amount of Rs.2,20,00,000/- was remaining to be divided among all the brothers.
4. It is the case of the appellant that he was paid a sum of Rs.25,00,000/- and was also given a post-dated cheque for a sum of Rs.5,00,000/- towards his share and was made to believe that the balance of sale consideration would be divided equally among the brothers. Respondents 2 and 3 – Brokers would receive the balance sale consideration and were to divide it among the brothers equally. The appellant was entitled to one-fourth share out of the total consideration amount. Since the cheque of Rs.5,00,000/- given to the appellant was dishonoured, suspicious about the transaction when he obtained the registered sale deed, he noticed that Rs.93,90,000/- was paid to Respondents 2 and 3 but however, the said amount which was to be divided among the brothers was not distributed. Hence, suspecting that Respondents 1 to 3 and 5 who were worldly wise had joined hands with each other and siphoned the amount of Rs.93,90,000/-, he had filed an application I.A.1 seeking temporary injunction to restrain the first defendant from alienating the property till he deposits Rs.5,00,000/-. The Trial Court by its order dated 21.06.2017, allowed the said I.A.I and by its order, restrained the first defendant from alienating the suit property till he deposited Rs.5,00,000/- into court. But however, if the said amount of Rs.5,00,000/- was deposited by the first respondent, the interim order would automatically stand vacated. Hence, the appellant is in appeal aggrieved by this portion of the order and thereby seeking to confirm the exparte interim order granted by the court below dated 26.04.2017 on I.A.No.1/2017 filed by the appellant.
5. The learned counsel for the appellant contends that the court below having observed that the balance of convenience lies in favour of the plaintiff and irreparable loss and injury would be caused if temporary injunction was not granted, ought to have confirmed the earlier order of exparte interim order of temporary injunction granted on 26.04.2017.
The court below had committed an error in holding that if the deposit of Rs.5 lakh was made by the first respondent, the order of temporary injunction would stand vacated. If the property is alienated pursuant to the modification of the interim order, there would be multiplicity of litigations, thus causing injustice to the appellant. Hence, the learned counsel for the appellant contends that the impugned order dated 21.06.2017 in O.S.No.235/2017 on I.As.1 and VI be set aside and the exparte interim order dated 26.04.2017 passed on I.A.No.1/2017 be confirmed.
6. Per contra, the learned counsel for the respondents / defendants seeks to justify the order passed by the court below and contends that the impugned order passed by the court below on I.As.1 and VI being just and proper, does not call for any interference by this court.
7. Having heard the learned counsel for the parties and on an examination of the material on record, I am of the opinion that in civil law, plaintiff and defendants have to adduce oral and documentary evidence with regard to the plaint and written statements filed by them, in order to establish their case in respect of the suit schedule properties, in accordance with law. Therefore, it does not require any detailed discussion in this appeal relating to the suit schedule properties involved. The suit is set down for adjudication of the rights of the parties and the same is required to be disposed of on merits based upon the evidence as well as the contentions advanced by the plaintiff and defendants to establish their case.
Therefore, civil right is always to be established by both the parties by producing oral as well as documentary evidence. The said evidence has to be appreciated by the court of law to determine their rights. Therefore, this appeal is disposed of, with a direction to the court below to dispose of the suit in accordance with law, as expeditiously as possible by providing an opportunity to both the parties to establish their case. Both the parties shall co-operate with the court below, for speedy disposal of the suit on merits.
The restraint order dated 21.06.2017 passed by the Senior Civil Judge & JMFC, Devanahalli on an application I.A.No.1 in O.S.No.235/2017, shall be in force till the disposal of the suit. Thereby, the first respondent / first defendant shall not alienate the suit schedule property, till the disposal of the suit in O.S.No.235/2017.
Accordingly, the appeal is disposed of.
SD/- JUDGE KS